Should Physicians Encourage Social Surrogacy?
‘Social surrogacy’ refers to a surrogacy arrangement where the female intended parent (IP) has a gestational carrier (GC) even though the female IP has no medical reason not to carry a pregnancy.
Due to the updated definition of ‘infertility’ by the American Society of Reproductive Medicine (ASRM), social surrogacy does not apply to queer IPs because queer singles and couples require medical intervention to have children (1).
However, queer IPs are on a spectrum of assisted reproduction. On one extreme of this spectrum are heterosexual singles or couples with medical infertility, and on the other end is social surrogacy. Should there be a point on this spectrum where surrogacy is not advised?
As a physician and gay man currently undergoing surrogacy, I feel I am in a unique position to weigh in on a recent article in ASRM’s Fertility and Sterility entitled, ‘Should physicians be facilitating gestational carrier arrangements in the absence of medical indication?’ (2)
Therefore, I will review the pro and con arguments in this article, and then I will share my own perspective in the conclusion.
Authorship, Affiliations, and Conflicts of Interests
It’s important with any publication to review the authors, their affiliations, and their conflicts of interest. This information is standard with any peer-reviewed publication, but I think it is especially important when the article is an opinion piece that discusses an ethical argument.
For this article, there were two authors who wrote the pro section in favor of social surrogacy, and there were three authors who composed the con section against social surrogacy.
The pro authors were:
Brian Levine, M.D.: A reproductive endocrinologist at the Colorado Center for Reproductive Medicine and the founder of Nodal, an online surrogacy matching platform.
Alexis L. Cirel, Esq.: An attorney at Warshaw Burstein, LLP in New York.
The con authors were:
Kate D. Schoyer, M.D.: A reproductive endocrinologist in the Division of Reproductive Medicine in the Medical College of Wisconsin, Milwaukee.
Arthur R. Derse, M.D., J.D.: A physician and lawyer in the Center for Bioethics and Medical Humanities and Department of Emergency Medicine in the Medical College of Wisconsin, Milwaukee.
Robert T. Rydze M.D.: A reproductive endocrinologist in the Division of Reproductive Medicine in the Medical College of Wisconsin, Milwaukee.
There are two things of note for me in this list of authors:
Dr. Brian Levine owns a business (Nodel) that stands to profit from the expansion of surrogacy. I feel like they could have selected another author to compose this section who would have less perception of bias.
The group of con authors are all academic physicians from the same institution. While Dr. Arthur Derse is also a lawyer, I think this group would have benefited from having a reproductive endocrinologist in private practice and/or a practicing lawyer.
With authorship, affiliations, and potential conflicts of interest in mind, I will now summarize the main pro and con arguments presented in the article.
Pro Arguments in Favor of Physicians Facilitating Social Surrogacy
The pro argument authors had 5 main points to support social surrogacy:
The current framework for surrogacy in the U.S.
Bodily autonomy for women.
The elective nature of all surrogacy arrangements.
Subjective physician interpretation for the medical ‘need’ for surrogacy.
Legal status for IPs is about intent and not about the reason for pursuing surrogacy.
In terms of the current framework for surrogacy in the U.S., the authors pointed out that there are strict guidelines for screening and evaluation from a medical, psychological, social, and financial perspective for GCs. This process has been developed so that GCs understand and are in a position to accept the risks of being a surrogate without any potential for coercion.
This framework then leads to the second argument around bodily autonomy for women. If a woman understands the process of surrogacy, she should be able to decide if this is something she wants to do with her body. She will also be able to say no to IPs who are pursuing social surrogacy if this is something that doesn’t align with her desire to be a GC.
The pro argument authors then emphasized that all surrogacy arrangements - whether from medical infertility, social infertility (i.e. queer IPs), or social surrogacy - are elective. These arrangements all start from the same place, and so why would one be excluded if the GCs are empowered to decide what starting point(s) they want to engage with?
The authors also pointed out that the medical definition of ‘need’ can be subjective and ambiguous. Should mental health reasons such as emetophobia (the fear of throwing up), tokophobia (the fear of pregnancy and childbirth), or other psychological challenges be interpreted individually by physicians as a valid medical ‘need’ for a GC?
Lastly, the pro authors point out that the Uniform Parentage Act of 2017 does not require a medical need for surrogacy. While some states do include a medical requirement for surrogacy (3), the laws in all states grant parentage via GC based on intent to be a parent and not what type of surrogacy was done to achieve parenthood.
Con Arguments Against Physicians Facilitating Social Surrogacy
The con argument authors had 2 main arguments:
Do no harm.
Physician autonomy.
All physicians take the Hippocratic Oath (4). Even though this oath was written over 2,000 years ago, one of the main components is still relevant to physicians today: Do no harm.
This means that first and foremost, physicians have an obligation to never knowingly make a patient’s condition worse.
The con argument authors leverage this in the description of the GC as their ‘second patient’ during fertility treatments. Because pregnancy always has risks, doing nothing to a potential GC leads to less harm than allowing all potential GCs to engage in surrogacy.
Even in the U.S., pregnancy is not without risks, and these risks have been increasing. The authors quote the following U.S. statistics:
All-cause mortality (death) among women of reproductive age has increased over the last 10 years, with marked increases among women aged 25 to 39 years.
The National Center for Health Statistics reports a maternal mortality rate ranging from 20.1 to 32.9 deaths annually per 100,000 live births over the past 5 years.
This idea of doing no harm then rolls into their second main argument: Physician autonomy.
The American Medical Association (AMA) Code of Medical Ethics states that a physician may refuse to provide care that has no medical indication, and medical ethicists have been quoted as saying, “Providers are not obligated to meet every patient demand for treatment…the right of doctors to assert their own self-determination interest by refusing to provide requested care is a recognized value in medical ethics.”
Therefore, the con authors argue that if there is no medical indication and they are tasks with doing no harm, then social surrogacy does not fall within the guidelines of physician intervention and so should not be conducted.
My Perspective as a Gay Man and Physician
This article was challenging for me to read as I kept going back and forth between the two opinions.
However, my concluding perspective is that I am in favor of physicians engaging in social surrogacy arrangements.
I came to this conclusion through 4 main arguments for social surrogacy:
Trust and belief in the current framework for surrogacy in the U.S.
Medical ‘need’ for surrogacy should not be subjectively determined by individual physicians.
My own journey as a gay IP was deemed ‘social surrogacy’ before the 2023 update to ASRM’s infertility guidelines.
The con authors’ arguments aren’t aligned with plastic surgery.
I agree wholeheartedly with the pro authors’ statements regarding the ethical framework of surrogacy in the U.S., and I have written extensively as to how this framework should be applied to emerging surrogacy markets like Mexico (https://www.babymoonfamily.com/original-articles/ethical-surrogacy-abroad).
I have seen through my own experience and research that GCs in the U.S. undergo extensive testing to ensure they are medically, psychologically, socially, and fiscally stable for surrogacy, leaving no room for coercion. In this framework, I believe women are able to give consent and make an informed decision about wanting to engage in surrogacy, and that physicians should not impede this if the women clear screening.
We have seen with the ASRM’s guidelines for infertility and with the emerging emphasis on mental health that ‘medical need’ can change. With new disorders and technology, medicine is an ever-evolving field. However, allowing physicians to determine if a female IP’s reason for wanting to engage is surrogacy is ‘valid’ is akin to allowing physicians to determine if a woman should be allowed to get an abortion. It’s not the physician’s role to decide what a woman wants to do with her body, as long as the procedure’s risks can be mitigated as much as possible, then this subjective interference for social surrogacy from physicians should not be allowed.
I feel like my own journey through surrogacy has more similarities than differences to a female IP who doesn’t want to be pregnant. Perhaps she is an elite athlete, a high powered executive, a transgender person, or has a mental condition or phobia that would not allow her to healthily be pregnant. As long as the GC is screened, informed, and consents, then how is this different from my own surrogacy?
Intended fathers never have to be pregnant. Gay or straight, surrogacy or not, intended fathers don’t have to think about what a pregnancy will do to their body, career, or performance. So, if a woman wants to be a mother and has the means to engage in surrogacy, why should she not be allowed to pursue this path that has always been available for men to become parents?
Again, if the GC who works with this IP understands the situation, then I don’t see the ethical dilemma. The GC may even prefer to work with such an IP, as this IP will not bring her own infertility baggage to the pregnancy. I have read about surrogates who prefer working with gay men because of challenges with female IPs who are jealous and create an uncomfortable relationship with the GC. Maybe a GC would like to avoid this and so should have the option of pursuing a social surrogacy arrangement.
Finally, let’s talk about plastic surgery. I know it’s a bit of a tangent, but the con authors’ relied on ‘do no harm’ for their ‘second patient’ (i.e. the GC). However, I don’t see how explaining the risks to a fully screened woman who wants to be a GC is any different from explaining the risks to a healthy woman or man who wants to undergo cosmetic plastic surgery? Plastic surgery can have medical and psychological benefits to the patient, but many procedures don’t. They are cosmetic, and yet the risks from surgery can include death. The physician has to explain these risks, and the patient has to accept them. That is all that is required to ‘do no harm.’
Medical students self select their specialities based on their interests. Plastic surgeons are interested in and select a career that includes non-medically necessary surgeries. Perhaps reproductive endocrinologists (REIs) should also be informed early on and self-select for a profession where surrogacy of all types is part of the profession?
I believe that surrogacy done right is an amazing scientific and human achievement, and in support of all queer IPs, all women, the ethical standards for surrogacy in the U.S., and my own fatherhood journey, I support physicians engaging in social surrogacy.
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